Konan, R (on the application of) v Secretary of State for Home Department

The claimants are nationals of the Ivory Coast. They are mother and daughter. The mother, Jacqueline, is now 29 and her daughter, Thelma is 2, having been born on 18 April 2001 shortly after her mother arrived in this country on 2 February 2001. Permission to pursue this claim was granted by Mackay J on 3 February 2003 on an oral application following a refusal of permission on the papers. The claim challenged the defendant’s refusal to accept that the mother had made a fresh claim for asylum and the issue of a certificate under s.73 (8) of the Immigration and Asylum Act 1999 in respect of the human rights claims made by her. It also challenged the failure to respect Thelma’s rights as the child of an EEA national, her father being French. Further, the claimants had been detained from 10 June 2002 until released on bail on 23 December 2002 and that detention was said to have been unlawful.

On 22 May 2003 the defendant agreed to withdraw the certification under s.73 (8) and to accept that a fresh asylum claim had been made which, if rejected, would attract a fresh right of appeal. He also agreed to pay costs. But he did not accept that the detention of the claimants had been at any time unlawful. That is the issue which I have to determine. It has been agreed that, if I decide that the detention or any part of it was unlawful, damages should be considered later.

When the claim was before me on 16 October 2003, it was recognised that two decisions of the Administrative Court, namely R (Nadarajah) v Secretary of State for the Home Department [2002] EWHC 2497 Admin and R (Amirhanathan) v Secretary of State for the Home Department [2003] EWHC 1107 Admin were of fundamental importance in deciding whether the detention was unlawful. Both these cases were under appeal. The appeals were due to be heard shortly and, in the circumstances, it was obviously sensible for me to await the outcome of the appeals before giving this judgment. The appeals were heard together on 10 and 11 November 2003 and judgment was given by the Court of Appeal on 8 December 2003 – see [2003] EWHC Civ 1768. I had informed counsel that I would consider any written representations received within 7 days of the publication of that judgment. I am not in the least surprised to have received no representations: the judgment, as will become clear, speaks for itself. But this explains the delay in giving this judgment.

This is an unfortunate story of very poor administrative decisions compounded by less than competent representation of the claimants. It was not until the claimants instructed Messrs Winstanley Burgess (who sadly, no longer deal with immigration cases) in November 2002 that this case was properly explained.

I must set out, as briefly as possible, the history. It is a cautionary tale since it shows that decisions of the defendant’s officials and the appellate authorities can be wrong and that there is a need for a judicial assessment. I say that because the defendant finally recognised that the claimants should be permitted to remain in this country, certainly for a time, since Thelma’s father was indeed a French citizen who had rights of entry and residence here. It was also accepted that Jacqueline had made what was regarded as a fresh claim. If the possibility of judicial review had not existed the claimants would wrongly have been returned to the Ivory Coast.

Jacqueline entered the United Kingdom by means of a false French passport which, in accordance with what had been agreed, she posted back to the owner. She did not claim asylum immediately. The claim was made through solicitors on 7 February 2001, some 5 days after her arrival. Her family was well off and she did not need to leave for economic reasons. She had joined the RDR party, which was opposed to that in power. In October 2000 the RDR was excluded from presidential and legislative elections and in January 2001, following unrest resulting from what was regarded as political persecution, she was arrested. The conditions of her detention were singularly unpleasant. After 3 days, she was released when it was realised that she was pregnant. She claimed that on 27 January 2001, she leant that gendarmes had come to her home to arrest her. She had been out. This led to her decision to flee the country.

On 9 June 2001, her claim was rejected. In essence, the defendant took the view that membership of the RDR was not of itself likely to lead to persecution and the manner in which entry to the U.K. had been achieved indicated a degree of planning coupled with a determination to enter the U.K. dishonestly inconsistent with a genuine need for protection from persecution. She appealed to an adjudicator. Her appeal was heard on 1 November 2001 and was dismissed.

In addition to the matters she had relied on in making her claim, Jacqueline claimed that a few days before the hearing she had learnt from her sister that her uncle had been arrested and accused of plotting a coup. The uncle in question (in reality a cousin who was regarded as an ‘uncle’) was a Captain Fabien Coulibaly who had been a bodyguard to the ex-president. The adjudicator decided that Jacqueline had fabricated the account of the gendarmes coming to her house in order to enhance her claim. Further, the adjudicator found that the account of the arrest of her ‘uncle’ was altogether too vague. He concluded (Paragraph 10.6 of his determination): -

“It is clear to me that the appellant has no reason to believe, even if there has been an attempted coup, that her uncle was involved in any way. Her request to have time to find and produce such evidence to me is not one to which I am prepared to accede. She cannot even remember when it was she telephoned her sister or when it was that her uncle’s claimed arrest took place”.

She sought leave to appeal to the Immigration Appeal Tribunal. The grounds are not before me, but no further steps had apparently been taken to show that there had been an attempted coup in which Captain Coulibaly had indeed been arrested. In those circumstances, it is hardly surprising that her application was refused since the adverse credibility findings seemed well founded.

Thelma had been born on 18 April 2001. Her father is a French national called Theodule Duranty. He had visited the Ivory Coast on a number of occasions and in the summer of 2000, while there, he had formed a relationship with Jacqueline. He left the Ivory Coast for London in July 2000, but used to speak with Jacqueline on the telephone regularly until November 2000 when he reacted badly to the information that she was pregnant. In March 2001 she succeeded in meeting up with him again. He attended Thelma’s birth, but was unwilling to be involved in the immigration or asylum claims made by Jacqueline. For that reason, he demanded that he should not be named as father on the birth certificate and that the fact that he was Thelma’s father should not be raised in Jacqueline’s appeals. However, after Thelma’s birth, the relationship became firmer and he saw Jacqueline and his daughter more and more regularly until she was dispersed by NASS to Wigan in August 2001. Thereafter he visited as much as he could. Jacqueline had been granted temporary admission subject to conditions with which she had always complied.

On 17 April 2002 Jacqueline’s then solicitor wrote to the Home Office enclosing a letter from her mother dated 5 March 2002 in which she said that Jacqueline’s life would be in danger were she to return to the Ivory Coast. The letter was written in French. The solicitors said they were submitting a fresh claim for asylum based on the new evidence. This letter was overlooked by the Home Office and on 10 June 2002 it was decided that the claimants should be detained on the ground that their removal from the U.K. was imminent. On 11 June 2002 removal directions were issued for 18 June 2002. Meanwhile, on 11 June the claimants’ solicitors wrote to the Home Office claiming that they should be allowed to remain because Theodule Duranty, Thelma’s father, was a French national currently living in the U.K. and to remove the claimants would breach Article 8 of the European Convention on Human Rights. There was also a claim based on Article 3 that Thelma might suffer genital mutilation. That was manifestly ill-founded and has not since been raised. Nonetheless, there were two outstanding claims which had not been determined and so on 17 June 2002 the solicitors requested deferral of the removal directions and reasonable time to lodge a judicial review application.

On 18 June 2002 the defendant rejected the claims to remain. In relation to Jacqueline’s mother’s letter, it was said that the adjudicator’s conclusions should stand. The defendant’s official continues: -

“The Secretary of State also notes that you have submitted a letter purporting to be from your client’s mother which you say supports her claim that her life is in danger. As this letter is in French and as you have provided no translation the Secretary of State is unable to attach any weight to it as its contents are unknown. The Secretary of State takes the view that the onus is on your client to show that a document she seeks to rely upon can be relied on”.

I find this reasoning extraordinary. Quite apart from the fact the French is hardly an unusual language, it would have been appropriate to have asked for a translation within X days. No doubt competent solicitors would have sent one initially, but to ignore the letter because it was in French after a delay of 2 months is wholly unacceptable. Mr Kovats was not inclined to support the reasoning, but submitted that a rejection would have been inevitable even if the letter had been considered as it should have been. Since the solicitors had not put forward any confirmation of the arrest of Captain Coulibaly, this may be right, but I cannot help believing that the rejection was dealt with in the manner it was because detention on the basis of an imminent removal had already occurred. The claim relating to Thelma’s paternity was rejected because:-

“… there is no evidence that Mr Duranty is related (sic) to your client as claimed or that he is present in the United Kingdom. He is not mentioned as the father on the child’s birth certificate”.

The solicitors had failed to provide any supporting evidence from Mr Duranty and so that reasoning cannot be regarded as wrong.

On 24 June 2002 an application for judicial review was lodged and the defendant was told that that had been done. On 3 July a copy was sent to the Treasury Solicitor. Further evidence about Mr Duranty was submitted on 17 July 2002. On 3 September 2002, Henriques J refused permission and no oral renewal was sought. On 4 September 2002 an application for bail was refused by an adjudicator. On 17 July 2002 the claimants had been removed from the Harmondsworth Detention Centre to the only other centre which could accommodate families with young children, Dungavel in Scotland. This had been done largely because Thelma’s health was suffering at Harmondsworth, but it created real difficulties for the claimants in pursuing their legal remedies, particularly as there was a jurisdictional problem in that they were now in custody in Scotland so that bail applications and judicial review of the detention might have had to be dealt with there.

On 25 September 2002, the claimant’s solicitors submitted what they asserted was a fresh claim based on events which had occurred in the Ivory Coast on 19 September 2002. The material paragraph reads: -

“On Thursday 19 September 2002 our above named client’s uncle Captain Coulibaly Fabien (sic) who is also the personal bodyguard of General Guei (former Military Head of State) was killed when General Guei himself was assassinated along with his wife and other members of his family. Once again Captain Coulibaly’s relatives have also been massacred in what the Ivorian government has called a failed attempted coup.

Since that time the situation in Ivory Coast is described as frightening and the country is being plunged into civil war, while opposition members are being killed in Abidjan and other cities by gendarmes loyal to the government”.

The response to that came on 14 October 2002. In essence, the defendant said he was not persuaded that the claimant’s uncle had been involved in the attempted coup or had been killed. No supporting evidence had been submitted about him and the defendant believed that the claimant had fabricated the account of his uncle’s death and his involvement with General Guei. He relied on the adjudicator’s findings. No doubt, the solicitors should have done more to produce supporting evidence. Removal directions were reset on 17 October 2002 and on 23 October the claimants were brought back to Harmondsworth. On 25 October 2002 this application for judicial review was lodged.

It seems the claimant’s case had been brought to the attention of the media and she was interviewed on Woman’s Hour on 4 November 2002. It had also attracted the attention of Lord Avebury. He wrote to Lord Filkin (a Home Office minister) on 4 November 2002 pointing out that the solicitors may not have prepared the application for judicial review very well because of lack of access to papers and requesting that the case be urgently reconsidered. He followed this up with a letter of 5 November in which he pointed out that Captain Coulibaly’s role as aide de camp to General Guei and his alleged involvement in an earlier attempted coup was referred to in a report in October 2001. He further dealt with the existence and status of Mr Duranty and said that he was willing to undergo DNA testing. He said: -

“Your department’s letter of June 18 implies that she would have a human rights claim if Mr Duranty is indeed the father, so give the couple a chance to prove it”.

A reply to those letters from the minister who was responsible for immigration matters, Beverley Hughes, was sent on 7 November. This failed to deal with the question of Captain Coulibaly and, in relation to Mr Duranty and DNA tests, stated: -

“There has been no application from Ms Konan to remain in the United Kingdom on the basis of her relationship with Mr Duranty”.

At last the claimants moved to competent representatives. Following that, Winstanley Burgess made a detailed letter of claim to the Home Office which was backed up with material which lord Avebury had helped to obtain. On 19 November 2002 this was rejected. The defendant by now accepted that Captain Coulibaly had indeed been an aide de camp to General Guei and had been killed together with the General in the attempted coup of 19 September 2002. But he did not accept the claimed relationship. He said: -

“Information relating to Captain Coulibaly, his activities on behalf of General Guei and his death are widely available on the internet”.

I presume that sentence was thought to have some relevance to the contention that no independent supporting evidence had been submitted to show the claimed relationship and to the reliance of the defendant on the findings of the adjudicator. The first and most obvious comment is that if the information was widely available on the internet it is somewhat surprising that the defendant was unaware of it on 14 October. Secondly, the claimant had raised the issue of Captain Coulibaly back in November 2001 well before he had been involved in the attempted coup of 19 September 2002 and killed. In relation to Mr Duranty, the defendant continued to assert that no evidence had been produced to establish that he was Thelma’s father. Inter alia, he said this: -

“No explanation has been given about how Mr Duranty could have fathered Ms Konan’s child given that she allegedly arrived in the United Kingdom only two months prior to the birth of the child and spent only a limited period in France prior to her arrival”.

There was no basis for the assumption that seems to have been made that Thelma could only have been conceived in France. The letter goes on to state that no arrangements had yet been made for the DNA testing but that, if the relationship was proved, further consideration would be given. Still, no release from detention was considered to be appropriate.

On 6 December 2002 Winstanley Burgess wrote a long detailed letter enclosing material which did tend to corroborate the relationship and which raised substantial arguments to show that the original asylum decisions had arguably been erroneous. Meanwhile, on 5 December 2002 permission to apply for judicial review was refused on the papers, but on 13 December 2002 oral renewal was sought. On 23 December 2002, bail was at last granted by an adjudicator. The defendant still objected to its grant.

It is unnecessary to pursue further the defendant’s reaction to the continuing claims. It is now accepted that the relationship with Mr Duranty does exist and that Thelma can stay in the U.K. with him, as can Jacqueline initially until 2005. Her asylum claim was refused. Her appeal has been heard: the appeal was granted. There has been no appeal by the respondent.

Detention of illegal entrants such as Jacqueline and members of their families is permitted by Paragraphs 9, 10A and 16(2) of the Immigration Act 1971 as amended. Paragraph 16(2) allows such detention: -

“ … pending:-

(a)

a decision whether or not to give [removal] directions;

(b)

his removal in pursuance of such directions”.

It is, however, open to the defendant to have and to apply a policy which may limit the wide power given in the 1971 Act. He has to comply with the E.C.H.R. and in particular with Article 5. At the relevant time, his policy was set out in Chapter 38 of the Operational Enforcement manual. This included the following material provisions: -

“38.1

Policy

In the White Paper entitled Fairer, Faster and Firmer – A modern Approach to immigration and Asylum published in July 1998 the Government made it clear that, whilst regrettable, the power to detain must be retained in the interests of maintaining an effective immigration control. However, the White paper gave a commitment that detention would only be used as a last resort and that, wherever possible, we would use alternatives to detention (see 38.19 and Chapter 39). The White Paper went on to say that detention would most usually be appropriate.

to effect removal;

initially to establish a person’s time identity or the basis of their claim; or

where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release.

These criteria were amended by means of an answer to a Parliamentary Question about the Oakington Reception centre. Ministers made it clear that in addition to existing detention criteria, asylum applicants will be detained at Oakington where it appears that their application can be decided quickly, including those which may be certified as manifestly unfounded. See Paragraph 38.3.1 about Oakington.

In all cases detention must be for the shortest possible time. The aim should be to detain at the end of the process. It is not an effective use of detention space to detain people for lengthy periods of it would be practical to effect detention in the process once any rights of appeal have been exhausted. In this context, it should be borne in mind that a person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions, if released, than one who is removable”

“38.1.1.1

It is important that in detaining a person it can be shown that he is being detained with a view to his removal (not necessarily deportation). Detention for other proposes (such as deterrent to others where detention is not necessarily for the purposes of removal of the individual concerned) is not compatible with Article 5. It is important for Human Rights Act 1998 purposes that it can be shown that progress is being made towards removal. This is not a change: this already needs to be shown in order to satisfy the courts that 1971 Act detention powers are being used properly.

Article 5(4) states that everyone who is deprived of his liberty shall be entitled to take proceedings by which the lawfulness of his detention is decided speedily by a court. This Article is satisfied by a detainee’s right to challenge the lawfulness of a decision to detain by habeas corpus or judicial review in England, or by judicial review in Scotland”.

“38.3

Factors influencing a decision to detain.

There is a presumption in favour of temporary admission or temporary release. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified. All reasonable alternatives to detention must be considered before detention is authorised. Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified. There are no statutory criteria for detention, and each case must be considered on its individual merits. The following factors must be taken into account when considering the need for initial or continued detention. The list is not exhaustive neither is it in any order of priority.

what is the likelihood of the person being removed and, if so, after what timescale?

is there any evidence of previous absconding?

is there any evidence of a previous failure to comply with conditions of temporary release on bail?

has the subject taken part in a determined attempt to breach the immigration laws? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry).

is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave etc)

what are the person’s ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? Does the person have a settled address/employment?

what are the individual’s expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?

is the subject under 18?

has the subject a history of torture?

has the subject a history of physical or mental ill health?

(see also sections 38.5 – detention forms and procedures and 38.7 – special cases”.

“38.5.2

Form IS 91R “Reason for Detention”

This form is in three parts and is served on the subject upon his detention. The IO must complete all three sections of the form. The IO is required to specify the power under which a person has been detained, the reasons for detention and the basis upon which the decision to detain was made. The detainee must also be informed of his bail rights and the IO must sign, both at the bottom of the form and overleaf, to confirm the notice has been explained to the detainee and that he has been informed of his bail rights.

It should be noted that the reasons for detention given could be subject to judicial review. It is therefore important to ensure they are always justified and correctly stated. A copy of the form must be retained on the caseworking file. If any of the reasons given on the form IS91R change, it will be necessary to prepare and serve a new version of the form”.

“38.7.3.2 Families

The decision to detain an entire family should always be taken with due regard to Article 8 of the E.C.H.R. (see 38.1.1.2). Families may only be detained to effect removal, and detention should be planned to be effected as close to removal as possible so as to ensure that families are not normally detained for more than a few days. Family accommodation should be pre-booked by arrangement with DEPMU. As a matter of policy we should aim to keep the family as a single unit. However, it will be appropriate to separate a child from its parents if there is evidence that separation is in the best interests of the child. The local Social Services department will make this decision. In such cases, prior arrangement and authority will be required from DEPMU and the child’s parents should provide agreement in writing. As long as the child is taken into care in accordance with the law and following a decision of a competent authority Article 8 of the E.C.H.R. will not be breached (see 38.1.1.2). Its hound be noted that there are currently only a limited number of places for the detention of children as part of family units in the family suites at Tinsley House but the provision is set to rose with more family accommodation in the new detention centres planned for 2001”.

Evidence was put forward in R (Nadarajah) v Secretary of State for the Home Department by Mr Taylor, a senior executive officer in the Immigration Service. His statement, which was put before me, is dated 2 July 2002. That case concerned removal under the Dublin Convention, but it has not been suggested that the principles applicable to detention were any different in other removal cases. In Paragraphs 14 and 15 of his statement, Mr Taylor says this:-

“14.

In the event that the Claimant’s solicitors had lodged a second application for judicial review with the Administrative Court Offices than any removal directions then in place would have been cancelled. The Claimant’s removal would no longer be imminent and his continued detention would, in all the circumstances, no longer have been justified. This action would have been fully compliant with the guidelines set out in Chapter 38 of the Operational Enforcement manual. For the sake of clarity, I can confirm that the whole of Section 38.14 has been omitted as this is a section dealing with national security case only and is therefore classified as restricted. I also confirm that the telephone number of the DSPU has been omitted from Section 38.15 as this is also restricted, being a telephone number for internal use only).

15.

It is the Defendant’s experience that judicial review challenges to decisions in third country cases are, for the most part, brought only after transfer arrangements have been agreed between the U.K. and the receiving state and, usually only a matter of 24 – 48 hours before the projected removal of the Claimant to the safe third country. Immigration solicitors are also well aware that an application for judicial review suspends the removal of the Claimant and it would be most unlikely that detention would be maintained throughout projected judicial review proceedings”.

The form IS91R is of great importance. It states on its face:-

“Detention is only used where there is no reasonable alternative available. It has been decided that you should remain in detention because (tick all boxes that apply)”.

You have previously failed to comply with conditions of your stay, temporary admission or release.

You have previously absconded or escaped.

You have used or attempted to use deception in a way that leads us to consider you may continue to deceive.

You have failed to give satisfactory or reliable answers to an Immigration Officer’s enquiries.

You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the United Kingdom.

You have previously failed or refused to leave the United Kingdom when required to do so.

You are excluded from the United Kingdom at the personal direction of the Secretary of State.

You are detained for reasons of national security …

In Nadarajah at Paragraph 56 the Court of Appeal noted that the factors were relevant in that they demonstrated why the reason for detention existed. This, the Court stated, exemplified the fact, as explained by counsel for the Secretary of State that it was not the policy to detain wherever removal was imminent but only where there was some additional reason for detaining. Furthermore, as is recorded in Paragraph 58 of the judgment in Nadarajah,

“There are two further important aspects of the Secretary of State’s policy in respect of detention where removal is imminent:

(i)

removal will not be treated as imminent once proceedings which challenge the right to remove have been initiated and (ii) when deciding whether the removal is imminent the immigration service will pay no regard to a statement by the immigrant, or those representing the immigrant, that proceedings challenging the right to remove the immigrant will be initiated”.

The detention of the claimants on 10 June 2002 was accompanied by an IS91R in which Box c of the reasons (imminent removal) and Box 1 of the factors (not enough family ties) were ticked. No other box was ticked. In particular, neither Box a of the reasons nor Box 5 of the factors was ticked. I am bound to say that I find it difficult to understand how Box 1 of the factors was regarded as applicable. The claimant had never moved from the address at which she was required to live and her past record showed that she had complied with conditions of temporary admission, which included an obligation to report to the police. It was hardly satisfactory that the application for consideration of what was said to be a fresh asylum claim was overlooked so that removal could not take place until a decision was made on that. The perceived need for a speedy decision once the mistake was drawn to the defendant’s attention on 17 June may explain the lamentable failure to consider the letter written in French. However, very soon thereafter on 24 June 2002 an application for judicial review was lodged. This meant that removal could no longer be regarded as imminent and the defendant’s failure to release the claimants then was clearly contrary to his expressed policy. Since there was evidence (which I have not detailed since it is more relevant to any claim for damages) that certainly Thelma’s and probably Jacqueline’s health was being adversely affected by detention, the failure to release becomes the more inexplicable.

Not until 4 September 2002 did the claimant’s solicitors apply for bail. No doubt the removal to Scotland played a part in this. Bail was refused. I am most concerned that proper information may not have been given to the adjudicator. The IS91R relied only on the imminence of removal and the lack of family ties. The case summary prepared for the bail hearing gives the reasons for opposing bail. The material ones are as follows:-

Unfortunately, there is no record of what the adjudicator decided, although I note that a later bail summary asserts that bail was refused ‘on the grounds that there was a materially higher than normal risk of the applicant absconding at that time’. I fail to understand how such a decision could have been reached by an adjudicator who had all the material facts presented to him.

Notwithstanding the further judicial review application and the events of 19 September 2002 together with the representations of Lord Avebury, release was still refused. This again was manifestly contrary to the defendant’s policy. Bail was again refused on 14 November 2002. The same grounds were relied on to oppose so that again the adjudicator was not given a proper picture. His reasons for refusal are before me. He seems to have relied on what he regarded as the lack of any real chance that the judicial review would succeed and the absence of DNA testing in relation to paternity. His decision was in my view clearly wrong since the reasons he gives are not sufficient to justify a refusal of bail. It is to be noted that on 30 September 2002 an official was noting (in connexion with an anticipated bail application on 3 October 2002 which in the end was not pursued):-

“Our grounds for maintaining detention may not be strong enough to counter any argument put by representatives as she was detained in order to effect her removal. No previous history of absconding /child etc”.

Still detention was continued and opposition to bail was maintained at the hearing on 23 December 2002. This time the adjudicator reached the correct decision and bail was granted.

Mr Kovats submitted that judicial review was inappropriate since bail was an alternative remedy and in any event it was a collateral challenge to the refusals of bail. Both his points are thoroughly bad. An adjudicator in considering a bail application is not determining (indeed, he has no power to determine) the lawfulness of the detention. The grant of bail presupposes the power to detain since a breach of a bail condition can lead to reintroduction of the detention. Further, the requirement imposed by Article 5(4) of the E.C.H.R. that a detainee must “be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court” is not met by a right to seek bail. In Zamir v United Kingdom (1983) 40 D.R. 42 at 59 (Paragraph 109) the Commission said: -

“… this right must be seen as independent of the possibility of applying to a court for release on bail”.

Miss Harrison submitted that the detention of Thelma was inconsistent with the Article 37 of the UN Convention on the Rights of the Child. But that is not in my view aimed at the situation where a mother is detained who has a small child. It is concerned with the detention and removal of a child from his or her family – see Article 37(c). Nonetheless, it is clear that the fact that Jacqueline’s detention would involve the detention too of her very young child ought to have led to a recognition that detention must be for as short a time as possible. As is said in the defendant’s policy at 38.7.5.2: -

“Families may only be detained to effect removal, and detention should be planned to be effected as close to removal as possible so as to ensure that families are not normally detained for more than a few days”.

Since the detention at least since 24 June 2002 was contrary to the defendant’s own policy as published in Chapter 38, it was unlawful. In so deciding, I am applying the decision of the Court of Appeal in Nadarajah. I do not therefore have to consider the question of proportionality. In Saadi Lord Slynn stated that it does apply, but it is not altogether easy to identify its scope since he also decided that there was no need to show that detention was necessary to ensure that removal could be achieved. It seems that he accepted that detention for a short time in the conditions applicable at Oakington with a view to ensuring a speedy decision was proportionate. Equally I do not doubt that detention when removal is imminent with a view to an orderly and speedy removal is not disproportionate and Chahal v United Kingdom (1996) 1 BHRC 405 seems to confirm that even a lengthy period of detention may not be disproportionate if removal is being actively and realistically pursued, although in Chahal the Court considered not proportionality but arbitrariness in relation to Article 5. Suffice it to say that, if proportionality applies, as it may well do at least in the context of Article 8 (detention being an interference with the right to private life) the defendant’s policy can properly be regarded as representing his view of what is proportionate and so detention in contravention of that policy should be regarded as disproportionate. That approach is certainly consistent with the view that the right to liberty is of fundamental importance so that detention should only be used where any lesser restraints are not likely to achieve the desired result.

I have considered whether the detention was unlawful ab initio. Having regard to the failure to take account of the application made on 17 April, it is certainly arguable that it was. The factor relied on in the IS91R is singularly uncompelling. If the new claim had been rejected, detention, at least pending the lodging of an application for judicial review, would have been lawful provided detention was imminent and the factor relied on falls just short of being irrational. Even if the letter had been translated, it is clear that it would have been properly rejected. Accordingly, I am persuaded that the initial detention between 10 June and 24 June should not be regarded as unlawful, although I have no doubt that detention should not as a matter of discretion have been used.